Article 1. Definitions
In these General Terms and Conditions the following definitions apply:
Article 2. Applicability, changes and additions
2.1 These General Terms and Conditions apply to all quotations and Agreements, including changes and/ or additions thereto, whereby the Seller performs Work for a Buyer and apply to all legal relationships as a result thereof or in connection therewith.
2.2 Deviations from these General Terms and Conditions are only valid after Written confirmation by the Seller. In the event of one or more provisions of these General Terms and Conditions being deviated from, the other provisions will remain in force.
2.3 These General Terms and Conditions also apply to third parties engaged by the Seller in the performance of the Agreement. These third parties can directly invoke these General Terms and Conditions in their relationship with the Buyer.
2.4 Without prejudice to the provisions of Article 9 (additional work), changes and additions to any provision in an Agreement only apply if they have been laid down in Writing by the Seller; they relate only to the relevant Agreement.
2.5 The seller is entitled to amend or supplement these General Terms and Conditions. Changes of minor importance can be made at any time. Major substantive changes are discussed with the Buyer in advance.
Article 3. Quotations, offers, specifications and formation of agreements
3.1 Quotations on the part of the Seller are valid for one month from the quotation date, unless explicitly stated otherwise.
3.2 An offer or quotation does not bind the Seller and only applies as an invitation to place an order.
3.3 Specifications have been compiled with care. However, the seller cannot guarantee that no deviations will occur in this respect.
3.4 The Buyer is not entitled to notify third parties or to have them take note of a quotation and/ or specification made by the Seller or to have the quotation or specification copied or otherwise reproduced. The Buyer shall immediately remove a specification received by e-mail and/ or a quotation made by the Seller by e-mail from its files at the Seller’s first request, as well as, in any case, if a quotation made by the Seller is not followed by an order.
3.5 An Agreement between the Seller and the Buyer is only concluded after the Buyer has signed the quotation or order confirmation received from the Seller for approval and the order has been accepted or confirmed by the Seller in Writing. The order confirmation from the Seller is deemed to represent the Agreement correctly and completely, unless the Buyer objects to this immediately and in Writing.
3.6 The Agreement only includes those supplies and services that are explicitly mentioned or described in the quotation or the order confirmation. In the event of a difference in this regard, the order confirmation will take precedence over the quotation.
3.7 In the event of a discrepancy between these General Terms and Conditions and the Agreement, the provisions of the Agreement will prevail.
3.8 The Agreement between the Seller and the Buyer is entered into for a period of one (1) year, unless the nature of the Agreement prescribes otherwise or if the Parties expressly agree otherwise in Writing. The Agreement is tacitly renewed for a period of one (1) year, unless the Agreement is renewed no later than one (1) month before the end of the current Agreement, unless the nature of the Agreement prescribes otherwise or if the Parties explicitly agree otherwise in Writing before the contract period has been terminated in Writing by one of the Parties.
Article 4. General obligations of the Seller
4.1 The Seller will make every effort to the best of its knowledge and ability to perform the Work in accordance with the requirements of good workmanship, based on the state of the art at that time; However, the scope of the obligations of the Seller also depends on the degree of input and influence of the Buyer or of the third parties engaged by or on behalf of the Buyer.
4.2 The Seller is obliged to do what is required by law, the requirements of reasonableness and fairness or the use according to the nature of the Agreement.
4.3 If and insofar as required for the proper execution of the Agreement, the Seller has the right to have certain activities performed by third parties.
4.4 The Seller ensures that he is aware of the statutory regulations and government orders relevant to the Work, as well as of regulations and rules of a special nature, including but not limited to privacy regulations and rules or requirements in the field of (protection of) data management. If and insofar as obligations arise for the Seller from the provisions or regulations referred to in the previous sentence, he will comply with these. The seller is obliged to treat the information disclosed to him with such care as is required by its confidential nature, all this in accordance with the General Data Protection Regulation. This due care means, among other things, that the safekeeping and storage of data is provided in such a way that unauthorized third parties cannot reasonably be aware of it. The Seller is furthermore obliged to observe strict confidentiality with regard to everything that has become known to him when entering into and executing the Agreement, unless the law prescribes otherwise. The duty of confidentiality also extends to the identity of the Buyer. The seller also imposes this duty of confidentiality on its own personnel and on third parties engaged by him. The duty of confidentiality remains unaffected after suspension of the performance of the Agreement or termination of the Agreement.
Article 5. General obligations of the Buyer
5.1 The Buyer shall ensure that all information, of which the Seller indicates that it is necessary or of which the Buyer should reasonably understand that it is necessary for the performance of the Agreement, is provided to the Seller in a timely manner, completely and correctly. If the information required for the performance of the Agreement has not been provided to the Seller in time, the Seller has the right to suspend the performance of the Agreement and/ or to charge the Buyer for the additional costs resulting from the delay at the usual rates.
5.2 If Work is performed by the Seller or third parties engaged by the Seller in the context of the order at the location of the Buyer or a location designated by the Buyer, the Buyer shall provide the facilities reasonably desired by those employees free of charge.
5.3 The Buyer indemnifies the Seller against any claims from third parties who suffer damage in connection with the performance of the Agreement if the cause is attributable to others than the Seller.
5.4 The Buyer is obliged to warn the Seller in Writing and within due time if he has actually noticed or should have been aware of a shortcoming on the part of the Seller.
Article 6. Commencement and execution of the Work
6.1 The Seller cannot be obliged to commence the performance of the Work until all necessary information, data or goods, as referred to in Article 4 and/ or 5, are in the Seller’s possession.
6.2 The Seller is entitled to commence and/ or deliver earlier, unless the Agreement provides otherwise.
6.3 If the Seller has stated a term for execution, this is only indicative. A specified implementation period can therefore never be regarded as a strict deadline. If a term is exceeded, the Buyer must therefore give the Seller written notice of default, whereby the Seller is offered a reasonable term to still execute the Agreement.
6.4 If it has been agreed that the Work will be performed in phases, the Seller is entitled to postpone the commencement of the Work belonging to a subsequent phase until the Buyer has approved the results of the preceding phase in Writing.
Article 7. Prohibition of taking over personnel
7.1 During the term of the Agreement, up to one year after its termination, the Buyer is not permitted to employ employees of the Seller who have been involved in the performance of the Agreement or to have them work for him in any other way.
7.2 The Buyer forfeits an immediately payable fine amounting to one (1) gross annual salary, which is not subject to judicial moderation, of the employee in question in the event of violation of the obligation referred to in paragraph 1.
Article 8. Suspension, revocation, dissolution and termination
8.1 If the Seller or Buyer fails to fulfill its obligations under the Agreement, then the other party, without prejudice to the relevant provisions of the Agreement, is entitled to dissolve the Agreement extrajudicially by means of a registered letter. The dissolution will only take place after the party that has been declared in default has been given written notice of default and a reasonable period has been offered to remedy the shortcoming.
8.2 Furthermore, one party is entitled, without any reminder or notice of default being required, to dissolve the Agreement extrajudicially and with immediate effect, in whole or in part, by means of a registered letter if:
1. The other party applies for (provisional) suspension of payments or is granted (provisional) suspension of payments;
2. The other party files for bankruptcy or is declared bankrupt;
3. The company of the other party is liquidated or discontinued;
4. The Work has been suspended or delayed for more than two months.
8.3 If the Buyer, after being given notice of default, does not, not fully or not timely fulfill any obligation arising from the Agreement, the Seller is entitled to suspend its obligations towards the Buyer, without being obliged to pay any compensation to the Buyer. The Seller is also entitled to do so in the circumstances referred to under 8.2.
Article 9. Changes / additional and less work
9.1 The Buyer is authorized to assign changes to the Seller. If the Buyer wishes additions or changes to the performances that the Seller must perform under the Agreement and the Seller is of the opinion that these performances are increased or expanded as a result, then there is additional work that the Seller can charge separately to the Buyer , also if a fixed price had previously been agreed between the Parties. The Seller will charge the Buyer for the additional work at a time to be determined by him.
9.2 If the Seller is of the opinion that additional work is involved, it will inform the Buyer of this as soon as possible and inform the Buyer of the consequences thereof for the price and for the period within which the Seller could fulfill its other performance under the Agreement.
9.3 The seller is not obliged to make an assigned change if the change:
1. has not been instructed in writing, or
2. would lead to an unacceptable disruption of the Work, or
3. exceeds the knowledge and/ or skills and/ or capacities of the Seller, or
4. if the Parties do not reach agreement on the financial consequences and/ or the consequences with regard to the planning.
9.4 The lack of a written order for additional work does not affect the right of the Seller to charge the Buyer for that additional work and the obligation of the Buyer to pay the amount due in this respect.
Article 10. Prices
10.1 All prices of the Seller are expressed in Euros and exclusive of sales tax.
10.2 The prices are based on circumstances applicable to the Seller at the time of the conclusion of the Agreement, such as purchase prices, material prices, salaries, social security charges, freight and/ or customs tariffs, import and export duties, excise duties, levies and taxes directly or indirectly levied from the seller or charged to the seller by third parties. If these circumstances change after the conclusion of the Agreement, but before the end of the performance thereof, the Seller has the right to pass on the costs resulting from that change to the Buyer without prior notice.
10.3 If Work is obstructed or suspended through no fault of the Seller, the resulting costs will be borne by the Buyer.
10.4 If, when setting the prices by the Seller, staggered rebates have been taken into account (for example due to the purchase of large numbers of Products or the conclusion of a subscription/ bundle for a longer period), then in the event of a change in the situation for which the staggered rebates has been granted (for example, if fewer Products are purchased or if the subscription is changed to a shorter period), the Seller is entitled to adjust the prices or to make a subsequent settlement.
10.5 The seller is entitled to apply an annual inflation correction in accordance with the rate of change of the “Consumer Price Index (CPI)”, as published by the Central Bureau of Statistics.
Article 11. Payment
11.1 Without prejudice to the provisions of Article 11.2. the Buyer will pay the amounts charged to him to the Seller within the payment term indicated on the invoice. All payments will be made to a giro or bank account number to be designated by the Seller.
11.2 The Seller is at all times free to deviate from the provisions of Article 11.1. and/ or, before performing (any further), to demand from the Buyer that (partial) payment in advance of the purchase price takes place or that the Buyer provides proper security, amounting to the amounts paid by the Seller, whether or not due , has or will have to claim from the Buyer on the basis of the agreement, such at the discretion of the Seller.
11.3 All amounts charged to the Buyer must be paid without discount or deduction. The Buyer is not authorized to set off. The Buyer is further not entitled to suspend any payment obligation towards the Seller. Questions about the invoice do not suspend the Buyer’s payment obligation either.
11.4 The Buyer is in default by the mere expiry of a payment term. In that case all claims, for whatever reason, of the Seller on the Buyer are immediately due and payable.
11.5 Without further notice of default, the Buyer owes default interest on all amounts that have not been paid by the last day of the payment term at the latest, from that day on, at the statutory (commercial) interest rate applicable at that time, plus 5%.
11.6 If the Buyer is in default towards the Seller, he is obliged to fully reimburse the Seller for the extrajudicial and judicial costs incurred.
11.7 If, after the Buyer is in default, the Seller directs payment reminders or other requests for payment to the Buyer, these do not affect the provisions of the Articles 11.4, 11.5 and 11.6.
11.8 Any amount that the Seller receives from the Buyer will first of all serve to settle those claims that the Seller may have on the Buyer in respect of which the Seller has not made a retention of title in accordance with Article 12 or cannot (any longer) enforce this retention of title. Thereafter, any amount that the seller receives from the Buyer will first of all serve to settle any interest, damages and costs owed.
11.9
Article 12. Ownership, retention of title and intellectual property
12.1 Offers and specifications remain the property of the Seller.
12.2 Notwithstanding the actual delivery of Products by the Seller, ownership of the Products will only pass to the Buyer after the latter has paid in full all that he owes or will owe to the Seller under any Agreement.
12.3 The Buyer is not entitled to pledge or otherwise encumber Products delivered to him by the Seller.
12.4 The Buyer is not permitted to independently modify or copy the Product or any part thereof.
Article 13. Inspection and complaints after delivery
13.1 The Buyer is obliged to carefully inspect the Product purchased by him upon delivery. Any complaints must be reported in writing to the Seller within 8 days after reception of the Product.
13.2 Defects that could not reasonably have been established within the limits of the period specified in Article 13.1., must be reported to the Seller in writing by registered mail immediately after it has been established.
13.3 The Buyer is obliged to send the defective Product to the Seller without delay after the defect has been discovered.
13.4 If the Buyer submits a timely, correct and, in the opinion of the Seller, justified complaint about defects in the Product, the Seller’s liability arising therefrom is limited to the described obligation referred to in Article 14.2., with due observance of the other provisions or Article 14.
Article 14. Guarantee
14.1 The Seller guarantees to the Buyer that the Product complies with all legal requirements and to what has been agreed in this respect during 12 months after delivery, provided that it is used normally and carefully and all (oral) instructions given for this use are strictly and fully complied with and without prejudice to the provisions of Article 14.3.
14.2 Provided that a complaint has been made on time, correctly and in accordance with the provision of Article 13, and it has been sufficiently demonstrated that the Product does not comply with what has been agreed in this respect, the Seller has the choice either to replace the defective Product or to have it repaired. The Seller is fully discharged of its obligations by complying with one of the conditions mentioned above.
14.3 In the following circumstances, the Seller can by no means be subject to the defined obligations according to Article 14.2:
Article 15. Liability and indemnity
15.1 If the Seller should be liable, this liability is limited to what is regulated in this article.
15.2 The Seller is not liable for any damage, of whatever nature, that is (partly) the result of the Buyer not correctly, not on time or not fully fulfilling obligations resting on the Buyer under the Agreement or these General Terms and Conditions.
15.3 Furthermore, the Seller is not liable for damage that is (partly) caused by the Buyer not correctly, not timely or not fully following instructions and advice from the Seller or third parties engaged by it.
15.4 The total liability of the Seller due to a demonstrable attributable shortcoming in the performance of the Agreement or for any other reason, is in all cases limited to compensation for the direct material damage suffered by the Buyer as a result.
15.5 Direct damage is exclusively understood to mean:
15.6 The Seller is never liable for indirect damage, including, but not limited to, trading loss, consequential damage, loss of profit and/ or stagnation damage, lost savings, damage as a result of claims by customers or buyers or employees of the Buyer and damage due to loss, destruction or mutilation of data.
15.7 If the Seller should be liable for any damage, that liability of the Seller is in any case limited to the amount that is paid out in the relevant case under the liability insurance policy/ policies taken out by the Seller, plus the amount of the deductible in accordance with the relevant applicable policy/policies, however without prejudice to the provisions of the last sentence of this paragraph. Copies of the current policy/policies with conditions are available for inspection at the Seller’s office. If, for whatever reason, no payment is made under the aforementioned insurance, any liability of the Seller will be limited to a maximum of the amount that the Buyer paid to the Seller in the year in which the damage-causing event took place, with a maximum of €5,000 per event and a maximum of €15,000 per year, whereby a series of related events counts as one event.
15.8 The limitations of the Seller’s liability included in this article do not apply if the damage is demonstrably due to intent or gross negligence on the part of the Seller.
15.9 If and insofar as the Buyer has insured any risk associated with the Agreement, he is obliged to claim any damage under that insurance and to indemnify the Seller against claims for recovery from the insurer.
15.10 The provisions of this article as well as all other limitations and exclusions of liability referred to in these General Terms and Conditions also apply to the benefit of all (legal) persons that the Seller uses in the performance of the Agreement.
15.11 The Buyer is always liable for damage to and loss of Products delivered to him under retention of title.
Article 16. Force majeure
16.1 The Seller is not obliged to fulfill any obligation towards the Buyer if it is prevented from doing so as a result of a circumstance that is not attributable to debt for its account, not by virtue of the law, a legal act or generally accepted beliefs.
16.2 In these General Terms and Conditions, force majeure is understood to mean, in addition to what is understood in this regard in law and jurisprudence, all external causes, foreseen or unforeseen, on which the Seller has no influence, but as a result of which the Seller is unable to fulfill its obligations. In this context, force majeure for the Seller also applies to the situation in which the production or supply of production slows down or stagnates for whatever reason, if production and/ or transport is provided by third parties. In this context, force majeure also applies to the situation in which the network and/ or the telephone connection and/ or the internet connection that the Buyer uses no longer works (sufficiently) and the situation in which the supplier of hardware or the provider of the Buyer installs updates and/ or does not maintain necessary updates, with the result that the Seller’s system no longer works or does not function properly.
16.3 The Seller is entitled to suspend its obligations under the Agreement during the period that the force majeure continues.
16.4 If the force majeure situation continues for more than six (6) months, each of the Parties is entitled to dissolve the Agreement in writing in whole or in part, insofar as the force majeure situation justifies this, without any obligation to pay compensation to the other party. In such a case, however, the Buyer is still obliged to purchase and pay for the products he ordered and that are already produced, as well as to pay for the products already in its possession but not yet paid for.
16.5 The parties will inform each other as soon as possible of an (imminent) force majeure situation.
Article 17. Applicable law / disputes
17.1 These General Terms and Conditions and the offers and Agreements to which they have been declared applicable are exclusively governed by Dutch law.
17.2 All disputes, including those that are regarded as such by only one of the Parties, that may arise as a result of a quotation or an Agreement issued, or these General Terms and Conditions, will be submitted to the (ordinary) court competent by law in the district of the Seller’s place of business.
17.3 The parties will not appeal to the (ordinary) courts until after they have made every effort to settle a dispute in mutual consultation.
Article 18. Headings
18.1 The headings to the articles of these General Terms and Conditions have no independent meaning whatsoever, neither with regard to their content nor with regard to the interpretation thereof; they only serve to improve legality.
Hengelo, January 2020